IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14-50928 WHOLE WOMAN'S HEALTH; AUSTIN WOMEN'S HEALTH CENTER; KILLEEN WOMEN'S HEALTH CENTER; NOVA HEALTH SYSTEMS, doing business as Reproductive Services; SHERWOOD C. LYNN, JR., M.D., on behalf of themselves and their patients; PAMELA J. RICHTER, D.O., on behalf of themselves and their patients; LENDOL L. DAVIS, M.D., on behalf of themselves and their patients, Plaintiffs - Appellees - Cross-Appellants v. DAVID LAKEY, M.D., Commissioner of the Texas Department of State Health Services, in his Official Capacity; MARI ROBINSON, Executive Director of the Texas Medical Board, in her Official Capacity, Defendants - Appellants - Cross-Appellees  Appeals from the United States District Court for the Western District of Texas Before SMITH, ELROD, and HIGGINSON, Circuit Judges. JENNIFER WALKER ELROD, Circuit Judge: Plaintiffs

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 filed this lawsuit seeking declaratory relief and permanent injunctions against the enforcement of two recent amendments to Texas’s

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 Plaintiffs in this lawsuit are some of the abortion providers in Texas: Whole Woman’s Health; Austin Women’s Health Center; Killeen Women’s Health Center; Nova

United States Court of Appeals Fifth Circuit

FILED

October 2, 2014 Lyle W. Cayce Clerk

Case: 14-50928 Document: 00512791273 Page: 1 Date Filed: 10/02/2014

 

14-50928 laws pertaining to the performing of abortions.

See

2013 Texas House Bill No. 2 (“H.B. 2”).

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 The lawsuit was filed in April 2014, and the district court conducted a four-day bench trial August 4–7, 2014. Three weeks later, at 4:39 p.m. on August 29, 2014, the last business day before the ambulatory surgical center provision would go into effect, the district court delivered its opinion and issued a final judgment enjoining the admitting privileges requirement and ambulatory surgical center provision of H.B. 2 as to all abortion facilities in Texas. The district court also enjoined other specific applications of H.B. 2. The district court opined that together these requirements “create a brutally effective system of abortion regulation” that is unconstitutional.  Appellants (collectively “the State”) appealed to the Fifth Circuit and filed an emergency motion to stay the district court’s injunctions pending the resolution of their appeal. Plaintiffs filed a response, the State replied, and

Health Systems d/b/a Reproductive Services; and Sherwood C. Lynn, Jr., M.D., Pamela J. Richter, D.O., and Lendol L. Davis, M.D., on behalf of themselves and their patients. Plaintiffs largely overlap with the plaintiffs in a previous challenge to H.B. 2.

See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott

, 951 F. Supp. 2d 891 (W.D. Tex. 2013). Whole Woman’s Health, Austin Women’s Health Center, Killeen Women’s Health Center, and Dr. Richter all were plaintiffs in the prior lawsuit. Doctors Lynn and Davis were not parties to the earlier proceeding, but Whole Woman’s Health and  Austin Women’s Health Center, respectively, sued on their behalf in

 Abbott

.

See

Complaint ¶¶ 13–14,

 Abbott

, No. 1:13-CV-862-LY (stating that clinics were suing “on behalf of” their “physicians”). Reproductive Services was not a plaintiff in

 Abbott

, but Dr. Richter, its medical director, was a plaintiff in

 Abbott

.

See

 

id.

 ¶ 21. Lamar Robinson, M.D. was a named plaintiff in

 Abbott

 and was originally a named plaintiff in this case. However, on June 3, 2014, he and former plaintiff Abortion  Advantage filed a Notice of Voluntary Dismissal. At oral argument in this case, the parties advised the panel that Dr. Robinson voluntarily dismissed his claims because he obtained admitting privileges at a hospital within thirty miles of the clinic at which he provided abortions. Planned Parenthood, the largest provider of abortion services in Texas, is not a party to this lawsuit, although it was a named plaintiff in

 Abbott

.

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 Act of July 12, 2013, 83rd Leg., 2d C.S., ch. 1, §§ 1–12, 2013 Tex. Sess. Law Serv. 4795–802 (West) (codified at Tex. Health & Safety Code Ann. §§ 171.0031, 171.041–.048, 171.061–.064, & amending §§ 245.010–.011; Tex. Occ. Code Ann. amending §§ 164.052 & 164.055).

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14-50928 we heard oral argument on the motion to stay on September 12, 2014. We GRANT, in part, and DENY, in part, the motion to stay the district court’s injunctions pending appeal.

I.

On July 12, 2013, the Texas Legislature passed H.B. 2. The proposed legislation for what became H.B. 2 was first filed in the Texas House of Representatives in June 2013. The House considered the bill in two public hearings. After three readings of the bill before the entire House, H.B. 2 passed with a 96-49 vote.

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 The bill was then sent to the Texas Senate, which also held a public hearing and read the bill three times.

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 The Senate engaged in a debate in which a number of senators gave speeches for and against the bill, and ultimately passed H.B. 2 with a final vote of 19-11.

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 Two of H.B. 2’s provisions are at issue here. The first requires any physician performing an abortion to have active admitting privileges at a hospital within thirty miles of the location where the abortion is performed. Tex. Health & Safety Code Ann. § 171.0031. The admitting privileges requirement went into effect on October 31, 2013.

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 The second provision

3

 83rd Leg., Second Called Session, House Journal at 63, 10 Jul. 2013,

available at

http://www.journals.house.state.tx.us/hjrnl/832/pdf/83C2DAY03FINAL.PDF#page=13.

4

 83rd Leg., Second Called Session,

available at

http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=832&Bill=HB2.

5

 83rd Leg., Second Called Session, Senate Journal at 46, 12 Jul. 2013,

available at

http://www.journals.senate.state.tx.us/sjrnl/832/pdf/83S207-12-F.PDF#page=2.

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 The admitting privileges requirement was originally scheduled to take effect on October 29, 2013, but the district court enjoined the requirement on October 28, 2013.

See  Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott I)

, 734 F.3d 406, 409–10 (5th Cir. 2013). We stayed the district court’s injunction as to the admitting privileges requirement on October 31, 2013, thus reinstating the admitting privileges requirement except as to “abortion providers who applied for admitting privileges within the grace period allowed under H.B. 2, but [were] awaiting a response from a hospital.”

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Case: 14-50928 Document: 00512791273 Page: 3 Date Filed: 10/02/2014